Citation Nr: 9810310
Decision Date: 04/02/98 Archive Date: 04/23/98
DOCKET NO. 96-51 874 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Entitlement to service connection for a bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for a laceration of the
left index finger.
4. Entitlement to service connection for a disability of the
right wrist.
5. Entitlement to service connection for a disability of the
right thumb.
6. Entitlement to service connection for a disability of the
right knee.
7. Entitlement to an increased evaluation for a left knee
disorder with crepitus, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Nancy R. Kegerreis, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1992 to March
1995.
This matter comes before the Board of Veterans' Appeals
(Board) from a September 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma, which denied the benefits sought on
appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, essentially, that the RO was incorrect
in denying him service connection for right knee, right
wrist, right thumb and left index finger injuries, because he
had been treated for such injuries while on active duty. He
maintains, as well, that he has a hearing disability with
tinnitus due to acoustic trauma caused by Bradley fighting
vehicles and artillery weapons. Because his left knee
symptoms increase with strenuous activity, such as running,
he believes that the condition is more disabling than the
current rating indicates.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports the
claim for service connection for patellofemoral syndrome of
the right knee; the appellant has not met the initial burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that his claims for service
connection for a bilateral hearing loss, tinnitus, a
laceration of the left index finger, a disability of the
right wrist, and a disability of the right thumb are well
grounded; and the preponderance of the evidence is against an
evaluation in excess of 10 percent for the veteran’s left
knee disorder.
FINDINGS OF FACT
1. The claims for service connection for a bilateral hearing
loss, tinnitus, a laceration of the left index finger, a
disability of the right wrist, and a disability of the right
thumb are not supported by competent evidence showing that
these claims are plausible or capable of substantiation.
2. The veteran’s right knee disorder is due to an injury
sustained while on active duty.
3. The veteran’s service-connected left knee disorder is
currently symptomatic, including minimal patellar compression
pain in the joint, but it is not productive of limitation of
motion, instability, locking, or subluxation.
CONCLUSIONS OF LAW
1. The veteran has not submitted evidence of well-grounded
claims of entitlement to service connection for a bilateral
hearing loss, tinnitus, a laceration of the left index
finger, a disability of the right wrist, and a disability of
the right thumb. 38 U.S.C.A. § 5107(a) (West 1991).
2. Patellofemoral syndrome of the right knee was incurred in
active service. 38 U.S.C.A. § 1110, 1131(West 1991);
38 C.F.R. § 3.303 (1997).
2. The schedular criteria for a disability rating in excess
of 10 percent for a left knee disorder have not been met.
38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.71a,
Diagnostic Code 5257 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service
Connection Claims
Service connection may be granted for diseases or injuries
incurred or aggravated while in active service. 38 U.S.C.A.
§ 1110 (West 1991); 38 C.F.R. § 3.303 (1997). The initial
question which must be answered for each of the service
connection issues on appeal is whether the veteran has
presented evidence sufficient to justify a belief by a fair
and impartial individual that the claims are well grounded.
38 U.S.C.A. § 5107(a) (West 1991). To be well grounded, a
claim must be “plausible;” that is, it must be one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive, but only possible to satisfy
the initial burden of § 5107(a). Epps v. Gober, 126 F. 3d
1464 (1997), adopting the definition in Epps v. Brown, 9 Vet.
App. 341, 344 (1996). A claim which is not well grounded
precludes the Board from reaching the merits of a claim.
Boeck v. Brown, 6 Vet. App. 14, 17 (1993).
To establish that a claim for service connection is well
grounded, a veteran must present medical evidence of a
current disability; medical evidence, or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus or link between the claimed in-service disease or
injury and the present disease or injury. See Epps v. Gober,
126 F.3d 1464 (1997); Caluza v. Brown, 7 Vet. App. 498, 506
(1995).
Alternatively, a claim may be well grounded based on
application of the rule for chronicity and continuity of
symptomatology, set forth in 38 C.F.R. § 3.303(b). Savage v.
Gober, No. 94-503, slip op. at 8 (U.S. Vet. App. Nov. 5,
1997). The chronicity provision applies where there is
evidence, regardless of its date, which shows that a veteran
had a chronic condition in service or during an applicable
presumption period and still has that condition. Such
evidence must be medical unless it relates to a condition as
to which, under case law, lay observation is competent. If
the chronicity provision is not applicable, a claim may still
be well grounded or reopened on the basis of § 3.303(b) if
the condition is observed during service or any applicable
presumption period, if continuity of symptomatology is
demonstrated thereafter, and if competent evidence relates
the present condition to that symptomatology. Id.
For the purposes of applying the laws administered by the VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, and 4000 Hertz is 40 decibels or greater; or when
the auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1997).
The veteran underwent three hearing tests during service
following the test provided on his entrance examination, none
of which included a speech recognition score. A reference
audiogram in April 1993 revealed the following pure tone
thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
05
05
20
05
10
LEFT
20
15
00
05
05
A more recent audiogram in January 1995 showed these pure
tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
05
05
05
00
00
LEFT
05
00
00
05
05
Although the veteran’s separation examination has not been
located, he submitted a one-page portion of what appears to
be his separation examination. Elevated readings were
evidenced at 1000, 2000, 3000, and 4000 Hertz. It was noted
on the examination form, however, that the machine had
malfunctioned. On retest, the following pure tone thresholds
in decibels were reported:
HERTZ
500
1000
2000
3000
4000
RIGHT
05
05
05
05
00
LEFT
15
00
00
05
05
As previously noted, the above regulation defines hearing
loss for VA purposes as, inter alia, a single pure tone
threshold reading of 40 decibels or greater or a pure tone
threshold for at least three of the indicated frequencies of
26 decibels or greater. None of the veteran’s audiograms,
other than the reading provided by machine malfunctioning,
revealed a hearing loss even approaching these levels.
Therefore, the Board finds that the veteran has not produced
any competent medical evidence that would show a presently
existing hearing loss of either ear as defined by the
applicable regulation (38 C.F.R. § 3.385). Service
connection may only be granted for a current disability; when
a claimed condition is not shown, there may be no service
connection. See, e.g., Brammer v. Derwinski, 3 Vet. App. at
225; Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
Consequently, the Board must find that there is no plausible
basis for allowance of the claim for service connection for
bilateral hearing loss.
As to the claim for service connection for tinnitus, although
the veteran claimed during his March 1997 hearing before the
RO that he had noted a distinct ringing in his ears the
Christmas before his discharge in March 1995, he has provided
no evidence, other than his own lay opinion, that he
currently has tinnitus or that he had tinnitus during
service, nor do his service medical records indicate any
incidents of head injury, or acoustic trauma that could
conceivably result in symptoms of tinnitus. Savage v. Gober,
10 Vet. App. 488, 497 (1997).
The Board notes that, for purposes of well groundedness,
continuity of complaints of ringing in the ears in service
and postservice is arguably sufficient to find the claim well
grounded, provided there is medical evidence of a current
diagnosis of the claimed condition. Savage, supra. Here,
the veteran has submitted no such evidence. As noted above,
service connection may only be granted for a current
disability; when a claimed condition is not shown, there may
be no service connection. Brammer, supra; Rabideau, supra.
Accordingly, service connection for tinnitus must be denied
as not well grounded.
Relative to the claims for laceration of the left index
finger, disability of the right wrist, and disability of the
right thumb, service medical records are silent as to any
injury or resultant treatment. A complete discharge
examination report is not of record, although the RO has made
repeated attempts to obtain one. A VA examiner in February
1997 did not specifically examine the veteran’s left index
finger, right wrist or right thumb.
The only evidence to support the claim for a left index
finger injury is the veteran’s testimony at his March 1997
hearing before the RO. He testified that when he was
cleaning a weapon at Fort Hood, the cleaning rod broke and
cut his finger. He stated that he was told that it was just
a cut and that he did not need stitches or any other medical
treatment. He claims numbness around scar tissue, however,
and believes that the finger currently has lack of motion, as
it will not go all the way back as does the finger on the
opposite hand.
As to disabilities of the right wrist and thumb, the veteran
testified at his hearing that he had jammed his wrist and
thumb, also at Fort Hood. He said that he had been seen in
the field by a physician’s assistant, who had treated the
wrist with a brace, but that he had not had any follow-up
treatment. Currently, he noted that when he was lifting
weights, his wrist would slide out of joint, and, if he tried
to lift 50 pounds or more, the wrist and thumb had a tendency
to lock and pop. Although he related that a VA doctor had
told him that his wrist and thumb should not be making a
noise or be stiff, he had not been given a diagnosis of
arthritis. A VA outpatient record in November 1996 notes
that the veteran had been seen for a sore wrist and thumb,
especially with typing. On physical examination, a
“popping” sound was heard in the right thumb. The Board is
unable to decipher the remainder of this record.
Again, as to these claims for laceration of the left index
finger, disability of the right wrist, and disability of the
right thumb, no competent medical evidence has been provided
as to any injury during service or any current disability.
Although the veteran claims current disabilities, there is
little evidence, other than his recent statements, to support
these claims. He has furnished no contemporaneous service or
private medical records indicating that he had these
disorders in service, nor has he provided statements from
witnesses who may have had knowledge of the incidents
described. Although he currently appears to have a popping
noise in his right thumb, there is no nexus shown between
this abnormality and any injury or condition during service.
The veteran’s statements in this regard do not supply the
needed medical evidence, as he is not competent to provide a
medical diagnosis or opinion as to medical disabilities.
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).
Since the RO has found the veteran’s claims not well grounded
and, in its October 1996 statement of the case, has
specifically addressed the question of well-groundedness, any
prejudice to the veteran from the omission of the well-
grounded analysis has been obviated. Additionally, the Board
views its discussion as sufficient to inform the veteran of
the elements necessary to submit well grounded claims for
service connection for the claimed conditions, and the
reasons why his current claims are inadequate. Robinette v.
Brown, 8 Vet. App. 69, 77-78 (1996).
II. Service Connection for a Right Knee
Disability
Service medical records are negative for a right knee
disorder. However, in October 1995, approximately six months
following service, the veteran was seen at a VA outpatient
clinic reporting pain in both knees. An examination at that
time revealed pain on flexion and extension of the right
knee, pain during motion, and pain even when stationary. The
tentative diagnosis was patellofemoral stress syndrome versus
retropatellar pain syndrome. A letter dated in December 1995
from a National Guard medical officer noted that the veteran
had been under care at Reynolds Army Community Hospital
Family Practice Clinic with a diagnosis of patellofemoral-
femoral stress syndrome. The condition had shown significant
improvement with physical therapy and was not considered so
disabling as to prevent him from functioning in his National
Guard position. While this letter did not specifically
relate the diagnosis to the veteran’s right knee, upon VA
orthopedic examination in February 1997, the veteran stated
that he had had some symptoms in the right knee joint, as
well as in the left, for which he was service-connected.
Examination of the right knee showed that the joint was
normal in size and shape, had full range of motion without
pain, no palpable crepitus, no tenderness to patellar
compression, no synovial thickening, and no instability, but
there was some minimal pain in the right knee joint with
squatting. An x-ray of the knee was reported as
unremarkable, but a diagnosis of an intermittently
symptomatic right knee, compatible with patellofemoral
syndrome of minimal severity, was recorded.
While there is an absence of medical evidence of a right knee
disorder during service, considering the veteran’s history of
a right knee injury injury while on active duty, his
continuity of right knee symptoms during and following
service, and the diagnosis of right patellofemoral syndrome
so soon after service, it is the Board's judgment that the
evidence is at least in relative equipoise on the question of
whether his right knee disability began during service.
Applying the benefit-of-the-doubt doctrine (38 U.S.C.A. §
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990)), the
Board finds that service connection for patellofemoral
syndrome of the right knee is warranted.
III. An Increased Evaluation for a Left Knee
Disorder with Crepitus
The Board notes that the veteran's claim for an increased
evaluation for a left knee disorder with crepitus is well
grounded within the meaning of 38 U.S.C.A. § 5107. A claim
that a condition has become more severe is well grounded
where the condition was previously service connected and
rated, and the claimant subsequently asserts that a higher
rating is justified due to an increase in severity since the
original rating. Caffrey v. Brown, 6 Vet. App. 377, 381
(1994). Since the Board is satisfied that all relevant and
available facts have been properly developed, no further
assistance to the veteran is required to comply with the duty
to assist mandated by 38 U.S.C.A. § 5107.
Although the Board must consider the whole record, see
38 C.F.R. § 4.2 (1997), where entitlement to compensation has
already been established and an increase in disability rating
is at issue, the present level of disability is of primary
concern. Therefore, those documents created in proximity to
the recent claim are the most probative in determining the
current extent of impairment. Francisco v. Brown, 7 Vet.
App. 55, 58 (1994).
Disability evaluations are administered under the Schedule
for Rating Disabilities which is designed to compensate a
veteran for reductions in earning capacity as a result of
injury or disease sustained as a result of or incidental to
military service. 38 U.S.C.A. § 1155; Bierman v.
Brown, 6 Vet. App. 125, 129 (1994). In evaluating a
disability, the VA is required to consider the functional
impairment caused by the specific disability.
38 C.F.R. § 4.10 (1996). Each disability must be evaluated
in light of the medical and employment history, and from the
point of view of the veteran's working or seeking work.
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).
Service medical records disclose that the veteran was seen
several times in May 1993 with complaints of pain in his left
knee for several months, which became worse with running.
Examination revealed left knee pain with entrapment of the
patella, with crepitus. There was no swelling or effusion,
and active range of motion was full. The diagnosis was
retropatellar pain syndrome.
Following service in October 1995, a VA outpatient record
noted pain in the left knee, but negative testing. The
tentative diagnosis was patellofemoral stress syndrome versus
retropatellar pain syndrome. The March 1995 letter from a
National Guard medical officer reports a diagnosis of
patellofemoral-femoral stress syndrome.
In February 1997, a VA orthopedic examiner noted a reported
history of progressive problems in the veteran’s left knee
since military service. Although there had been no specific
injury to the left knee, the veteran had experienced the
onset of left knee pain while running. He did not have a
history of locking, swelling, or instability of the knee.
Examination of the left knee revealed that the joint was
normal in size and shape. He had full range of motion of the
left knee both actively and passively, but complained of pain
with full flexion, particularly in the squatting position.
He had some minimal patellar compression pain in the left
knee joint, but no synovial thickening, no instability, no
significant crepitus in the joint, and good muscular
development and strength in the left leg. He had normal
tracking of the patella. An x-ray report of the bilateral
knees was unremarkable. The impression was intermittently
symptomatic left knee compatible with chronic patellofemoral
syndrome. The examiner opined that the functional loss
secondary to knee pain was minimal.
The veteran was initially rated under 38 C.F.R. § 4.71a,
Diagnostic Code 5014, for osteomalacia, which, in turn, is
rated on limitation of motion of affected parts as
degenerative arthritis under Diagnostic Code 5260, pertinent
to limitation of flexion and Diagnostic Code 5261, pertinent
to limitation of extension. For a 10 percent evaluation
under Diagnostic Code 5260, flexion would have to be limited
to 45 degrees, and under Diagnostic Code 5261, extension
would have to be limited to 10 degrees. Since, however, the
veteran has no limitation of either flexion or extension, the
RO has evaluated him under Diagnostic Code 5257 for other
impairment of the knee.
The Board finds that the medical evidence shows that the
veteran’s service-connected left knee disorder is currently
symptomatic, including minimal patellar compression pain in
the joint, but it is not productive of limitation of motion,
instability, locking, or subluxation. The veteran is not
shown to have such disabling pain productive of functional
impairment as to warrant consideration of assignment of a
rating in excess of 10 percent under the criteria of 38
C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App.
202 (1995). Of course, as the veteran does not show a
compensable limitation of motion, a 20 percent evaluation is
not warranted under Diagnostic Codes 5260 or 5261, and as he
does not show any appreciable recurrent subluxation or
lateral instability, a 20 percent evaluation is not warranted
under Diagnostic Code 5257.
In considering the benefit of the doubt, the Board finds that
since the preponderance of the evidence is against an
evaluation in excess of 10 percent, the claim must be denied.
38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.
App. 49, 55 (1990). As to an extraschedular rating, the
percentage standards may be set aside in exceptional cases.
38 C.F.R. § 3.321(b)(1). In this appeal, the RO, determining
that there were no exceptional factors or circumstances
associated with the veteran’s left knee disorder, did not
submit this case for extraschedular consideration. The Board
affirms the RO conclusion. See Bagwell v. Brown, 9 Vet.
App. 337, 339 (1996).
Inasmuch as the Board finds that the RO has correctly
evaluated the veteran’s left knee disorder with crepitus as
10 percent disabling, an evaluation in excess of 10 percent
must be denied.
ORDER
Service connection for a bilateral hearing loss, tinnitus, a
laceration of the left index finger, a disability of the
right wrist, and a disability of the right thumb are denied.
Service connection for patellofemoral syndrome of the right
knee is granted.
An increased evaluation in excess of 10 percent for a left
knee disability with crepitus is denied.
R. F. WILLIAMS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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